As Bangladesh court reaffirms Islam as state religion, secularism hangs on to a contradiction

While secularism is one of the constitution's fundamental principles, Islam is nonetheless the state religion.

Bangladesh’s avowedly secular Awami League
government, the Islamist party Jamaat-e-Islami and the fundamentalist group
Hefazat-e-Islam have almost nothing in common.
Yet,
the drama this week over a High Court hearing pertaining to a legal
writ, which
seeks to challenge a provision in the constitution that deems Islam as
Bangladesh’s state religion, shows that these three parties agree on at
least
one thing – the need to retain this provision.
A
few days before Monday’s hearing, the Hefazat organised protests across the
country. “We will save our religion even at the price of our blood,” chanted the group’s supporters. A Hefazat leader was
quoted as saying: “If Islam gets scrapped as our official religion, we will
unleash an all-out movement even if blood has to be shed.”
Hefazat-e-Islam
attained prominence in April 2013 for its ultra-fundamentalist list of 13 demands, which included passing a law that would hand down capital punishment to those who malign Islam.
On
the day of the hearing, the Jamaat-e-Islami called a one-day nationwide strike protesting the “deep-rooted conspiracy to rid
the country of religion by removing Islam as the state religion”. Many key
leaders of the Jamaat have in recent years been convicted in connection with
war crimes committed in 1971.Swift dismissal
Ideology
is clearly behind the demands of the Hefazat and the Jamaat. As for the Awami
League government, its position on the constitutional provision, which it was
due to support in court, seems anchored in practical politics – not wanting to
risk provoking domestic fundamentalist forces and losing political support.
According
to Professor Anisuzzaman, who translated the official Bengali version
of the constitution, the government is simply concerned that “those who are in
favour of state religion do not vote against the government”.
As
it turned out, however, none of these disparate groupings had anything
to worry
about. On Monday, it only took a few minutes for the three judges to
dispose of the challenge on technical grounds. The petitioner’s lawyers
did
not even get the chance to argue before the judges ruled that the Committee against Autocracy and
Communalism – the organisation which had filed the writ – did not have the
locus standi, or the right to be heard in the court.
The
court’s reasoning was not clear to those present. However, additional attorney
general Murad Reza claimed: “It was rejected on the ground that the committee
under which the petition was filed in 1988 had no legitimacy as it was not a
registered body… [T]his committee was never registered with the government. The
citizens filed the petition under this committee’s banner; they did not sign it
individually.”Challenge to secularism
To
understand the current state of affairs, one needs to go back to the original constitution
adopted in 1972, which stated both in its preamble and in Article 8 that “nationalism,
socialism, democracy and secularism” shall be the “fundamental principles”
of the constitution.
“The
founding fathers of the country wanted to have a secular nation,” said
Professor Anisuzzaman. “And all of us during our liberation war subscribed to
that and Bangladesh was founded on that basis.”
However,
things changed after the assassination of independence leader Sheikh Mujibur
Rahman in 1975. Four years later, while General Ziaur Rahman was in power,
parliament passed an amendment to the constitution that radically altered the
position of secularism.
Right
at the beginning of the constitution, even before the preamble, the amendment added
the text “In the name of Allah, the beneficent, the merciful”. And in the
preamble, the amendment replaced the word “secularism” with the words “absolute
faith and trust in almighty Allah”.
In
addition, the amendment of Article 8 removed the word “secularism” as a
fundamental principle, replacing it with “absolute faith and trust in almighty
Allah shall be the basis of all actions.”Another amendment
Ziaur
Rahman was assassinated in 1981. A year later, Lieutenant General Hussain
Muhammad Ershad came to power. In 1988, in an apparent attempt to shore up his
waning authority, an Ershad-controlled parliament passed the eighth amendment
which introduced Section 2A to the constitution. It stated: “The state religion
of the republic is Islam, but other religions may be practiced in peace and
harmony in the Republic.”
Almost
immediately, a writ challenging the constitutionality of Article 2A was filed
by the Committee against Autocracy and Communalism, represented by 15 eminent
academics and civil society leaders.
“Our
liberation was for a democratic secular country, not for an Islamic one,” said
Subrata Chowdhury, the lawyer for the petitioners.
The
writ argued that the Article was “violative of the indissoluble character and
basic structure of the Republic of Bangladesh as proclaimed in the constitution”
and was therefore “ultra vires of the Parliament and is null and void and of
legal effect”.
The
petition, however, did not proceed further as lawyers at that time were focused
on another legal challenge to a separate provision of the amended constitution,
which had sought to break up the high court.
“The
state religion case was not taken up then as senior lawyers said that this
was not the time for this case and felt that the courts were not ready to
interfere in this matter,’ said Subrata Chowdhury. The case collected dust.Two decades on
Fast
forward to 2010, when in an entirely separate case, the country’s
appellate division upheld a ruling of the high court that the fifth amendment
of the constitution – the one passed in 1979 when Ziaur Rahman was in power –
was illegal.
Given
the circumstances, the lawyers who had filed a case against General
Ershad’s
1988 amendment, which introduced the new provision about Islam as the
state religion, thought that the political and legal climate was now
more conducive to a
successful challenge. They dusted off their petition from 1988 and
returned to
court.
In
June 2011, the high court passed an order asking the government to explain
why the 1988 amendment should not be declared to be “ultra vires the
constitution and without lawful authority”.
However, before the court could take up the case, another constitutional
amendment – the 15th – was passed by the Awami League government.
Passed
at the end of June that year, it could have provided a perfect opportunity for
the government to remove the provision labelling Islam as a state religion. However,
although the government brought back into the constitution the original four
fundamental principles including secularism, and emphasised the equal status of
religions, it added a new provision which retained the wording on state
religion.
As
a result, in December 2011, the lawyers had to return to the high court, and obtain
a supplementary order asking the government why this new provision, brought in
by an Awami League government, was not unconstitutional.
It
was these orders which came before the high court on Monday – where
the court took a very different view on the locus standi of the petitioner than
the court had five years earlier, resulting in the case being summarily
dismissed.What next?
Not
all is lost for those committed to challenging the state religion provision
within the constitution.
The
petitioner’s lawyers can seek to appeal the decision on locus standi to the
appellate division. However, perhaps more significantly, because the case was
not dismissed on the merit of the arguments, a new writ could be filed by those
whose locus standi is irrefutable.
Since
2011, there remains an apparent contradiction within the country’s current
constitution – which states that whilst one of its fundamental principles is
secularism, Islam is nonetheless the state religion.
At
some point, this contradiction within the constitution will need to be
resolved. However, for now, it acts as a metaphor for the strongly conflicting
views held within the country on the relationship between the state and
religion.

Map of L K Advani's Rath Yatra of 1990

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